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Readers of this blog know that it is extremely difficult for an employee to sue his or her employer or co-employee in civil court. That was proven again in Johns v. Wengerter, A-2053-17T1 (App. Div. April 1, 2019).
Johns, a City of Linden firefighter, was on duty at the firehouse on November 27, 2015. He went to use the toilet but when he sat down, he heard and felt an explosion beneath him. The explosion was caused by a bang snap, which is a small firework that detonates when compressed. Johns suffered second degree scrotal burns as well as a contusion and a blood blister.
A co-employee, Wengerter, admitted to Johns that he placed bang snaps in various places in the firehouse as a prank. He also apologized to Johns after the incident. Later on he denied having done this. Johns never filed a workers’ compensation claim. Instead, he sued Wengerter in civil court. Wengerter defended the suit by raising the exclusive remedy provision of the New Jersey Workers’ Compensation Act. That provision in N.J.S.A. 34:15-8 renders workers’ compensation the only remedy for injuries to workers arising from their employment, except for rare circumstances. Johns argued that the claims were not barred because Wengerter was acting outside the scope of his employment. He also asserted that Wengerter’s actions were intentional.
The trial court dismissed the suit, and Johns appealed. The Appellate Division reviewed the record and concluded that the trial court’s dismissal of the case had adequate support. It said, “Johns produced no evidence that Wengerter’s placement of the bang snap on the toilet was anything other than an ill-conceived prank or ‘so far a deviation’ from work-related activity ‘as to constitute an abandonment of his employment.’ “
The Court also added that this injury to Johns would be covered under the New Jersey Workers’ Compensation Act as Johns was the victim of horseplay. “The placement of a bang snap on a men’s room toilet falls within the realm of coworker horseplay intended to startle, but not injure, a coworker despite the unfortunate and unintended result in this instance.” In evaluating whether this was co-worker horseplay, the Court noted: 1) the actions took place in the workplace; 2) Johns and Wengerter were on duty, and 3) the fixture involved, namely the toilet, was part of the employer’s workplace.
In regard to the argument that Wengerter intended to harm Johns, the Court said that there was simply no evidence in the record to support this assertion. “There is no suggestion in the record that Wengerter was aware that the particular circumstances of the prank that injured Johns was substantially certain to result in a physical injury.” This case is a useful one for distinguishing horseplay (which is always compensable for the victim) from acts of intentional harm (for which an employee can bring a civil suit). Proving intentional harm remains extremely rare and difficult in New Jersey, and the plaintiff in this case did not come close.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.